Argument preview: Sorting out competency

Posted Mon, October 8th, 2012 12:09 am by Lyle Denniston

At 10 a.m. Tuesday, the Supreme Court will begin hearing two cases — for a total of eighty minutes — on issues surrounding claims of incompetency by individuals convicted of state crimes, and the effect such claims may have on federal court review of their cases. In the first case, Ohio’s state solicitor general, Alexandra T. Schimmer, will represent state officials, and Scott Michelman of the Public Citizen Litigation Group in Washington, D.C., will represent the prisoner, Sean Carter. In the second case, the U.S. government will have ten minutes in the middle of the argument, largely to support the state officials in the cases. Speaking for the government will be Ann O’Connell, an assistant to the U.S. Solicitor General. Representing the state of Arizona in the second case will be its attorney general, Thomas C. Horne. Speaking for the prisoner, Ernest Valencia Gonzales, will be an assistant federal public defender, Leticia Marquez, of Tucson.

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Background

Individuals accused of crimes have a constitutional right to a lawyer — and a free one if they cannot afford that on their own — at all significant stages of their cases, up to the point of conviction. That is true whether they are charged in state or federal court. Whether they have a similar right once they begin appeals to challenge their conviction or sentence is less certain. One thing, though, is clear: if a state prisoner uses up all appeal rights in state courts, and starts a challenge in federal habeas court, there is no guarantee of a right to a lawyer — unless the individual is facing a death sentence. But that is a right under a federal law, not the Sixth Amendment.

A separate question about rights in a federal habeas case arises when the individual, or his lawyer, raises an issue of the convicted person’s mental competence to go forward with the case. The only constitutional right that the Supreme Court has recognized for mentally incompetent individuals convicted of crimes is that they cannot be given the death penalty; that was established in Ford v. Wainwright in 1986. Any “right to competence” thus would have to be found, if at all, in a statute. That is a quite unsettled area of criminal law, and one of the reasons for that uncertainty is that the Supreme Court in 1966 and 1967 issued a decision and orders that have been understood in very different ways by lower courts. The Justices may now be ready to sort that out, along with other habeas law issues, in two new cases — one from Ohio, the other from Arizona.

In two cases being argued this week — Tibbals v. Carter and Ryan v. Gonzales — the Court will be examining the scope of the right to counsel and other legal rights in death penalty cases in federal habeas courts in which the convicted individual’s mental competency is at issue. That divides into a set of issues about legal representation, and a separate set of issues about competency and potential delays of the federal habeas case — possibly for years — until the individual is found to be mentally competent to proceed.

These cases arise against the background of the Justices’ actions nearly fifty years ago in a Virginia death penalty case, Rees v. Peyton. A ruling in 1966 was the first of two significant actions by the Court in the case. Melvin Davis Rees, Jr., had been convicted of murder, and given a death sentence. Shortly after his case had reached the Supreme Court, Rees told his lawyers to drop the appeal and take no further action. His lawyers then told the Court they could not do that in good conscience, because they believed he was mentally incompetent and thus not able to make such a fateful decision for himself. The Court ordered that more evidence be gathered on his mental state.

After a federal judge ruled that Rees was, in fact, mentally incompetent, the Supreme Court in 1967 — in its second action in the case — simply put Rees’s petition on an indefinite hold. That hold, in fact, lasted for some twenty-eight years, until Rees died in 1995. Without ever having acted on his case, the Court then dismissed his petition. The meaning of those actions has almost never arisen again as an issue for the Supreme Court.

The competency issue in cases like Rees’s gets linked to the right-to-a-lawyer issue because it is generally understood that, if an individual convicted of a crime cannot communicate with his lawyer, because of a mental defect, both the lawyer and the individual are handicapped in trying to defend his rights. And that can lead into the two general questions that are at issue in the new cases: is there a right to be competent during a federal habeas case, and if the individual is presently incompetent, is there a right to have the case delayed until competency is restored?

There are perhaps three possible ways for courts to find that there is a right to be competent in habeas. One is to interpret the Supreme Court’s actions in Rees’s case as creating a statutory right to be competent before a federal habeas case can move forward. A second is to read such a right as implicit in a federal law which specifies that an individual convicted in state court of murder and facing the death penalty has a right to a lawyer in seeking federal habeas. And a third way is to find such a right to be implicit in a separate federal law that allows federal judges to order the hospitalization of an individual — facing charges but not yet tried — until mental capacity has been restored sufficiently to allow the trial to go ahead.

Assuming that a court finds such a right to competence in any one of those three ways, the next question is whether the federal court has the authority — and maybe even the duty — to order an indefinite delay in habeas for a convicted state prisoner, until competence has been restored.

That is the situation the Justices will face on Tuesday. In the Tibbals case, involving Ohio death row inmate Sean Carter, the Sixth Circuit Court found a right to be competent during habeas in both the Rees v. Peyton orders, and under the federal law giving judges authority in a pre-trial setting to order the hospitalization of a mentally incompetent person. The Sixth Circuit then concluded that with such a right, the individual’s habeas case must be put on hold until competency is restored. In the Ryan case, Arizona death row inmate Ernest Valencia Gonzales was found by the Ninth Circuit Court to have a right to consult with his lawyer competently during habeas, under the federal right-to-counsel law for state inmates facing death sentences and pursuing habeas. Thus, the Circuit Court ruled, the habeas case should be delayed until Gonzales is competent enough to cooperate with his counsel.

State officials have appealed in each case, and have drawn considerable support from the federal government, which has argued that neither of the federal statutes cited in these cases creates a right to competency during habeas, and that the Court’s actions in Rees v. Peyton do not create such a right. In addition, the government’s position is that there is no general right to have a habeas case stayed indefinitely while the convicted individual remains incompetent.

Facts of the two cases

In the Ohio case, Sean Carter was convicted of the 1997 murder of his sixty-eight-year-old adoptive grandmother, Veader Prince, at her home in Farmington Township. His grandmother refused to allow him to live with her after he had been released from jail for theft. He raped, beat, and stabbed her eighteen times, and then stole money from her purse and drove away in her car. After he was convicted and given a death sentence, his appeals in state court failed, and he began a federal habeas challenge, claiming that his lawyer had been deficient in failing adequately to raise the issue of his mental competence.

His habeas challenge was denied in the federal district court, and he then appealed to the Sixth Circuit Court, which ruled that the habeas petition should not have been dismissed, but instead delayed until he had regained his competency. In doing so, the Circuit Court interpreted Rees v. Peyton as creating in death penalty cases a statutory right to competence during federal habeas proceedings. The statutory right, it said, existed in the federal law giving judges the authority to order competency hearings and hospitalization for mentally incompetent persons awaiting trial.

Appealing the case to the Supreme Court, Ohio officials argued that there is no right to competence in habeas proceedings, and no related right to delay until competency is restored — especially in cases where the only issues in habeas are legal matters or factual issues that are contained in a state court record, since those circumstances would not require the convicted individual to communicate with his lawyer. State officials, the petition argued, have a right to have federal habeas challenges in their state cases proceed to a decision, and any delays in such proceedings will simply encourage other inmates to raise competency issues in order to obtain delays.

In the Arizona case, Ernest Valencia Gonzales was convicted of the 1990 murder of Darrel Wagner in Phoenix, along with other, related crimes, and was sentenced to death for the murder. After pursuing unsuccessful appeals in state courts, he began a federal habeas challenge. His lawyers sought a ruling that he was mentally incompetent and asked for a stay of the habeas case in the meantime. The lawyers said Gonzales had begun refusing even to talk to them. Doctors concluded that he could not communicate rationally with his lawyers.

A federal district judge ruled that all of his legal claims were based on the state court record or were legal in nature, so his cooperation was not necessary. At the request of Gonzales’s lawyers, the Ninth Circuit Court ruled that the habeas case, in fact, could benefit from Gonzales’s participation, since, over time, he had been represented by several different lawyers and only he knew how the case had unfolded. A competency hearing was ordered, and his habeas case was stayed.

Arizona officials filed their petition in the Supreme Court, with the support of fifteen states, arguing that Gonzales had no right to remain competent during the habeas case, and thus had no right to any delay while his competency was examined or pending its restoration. The officials contended that the Ninth Circuit ruling undercut Congress’s purpose in 1996 in ordering a speed-up in federal habeas proceedings, arguing that the competency issue would now be raised routinely by state prisoners seeking delays.

The Supreme Court reacts

While the cases were pending at the Court, the Justices asked for the federal government’s views in the Arizona case. The U.S. Solicitor General urged the Court not to review that case “at this time.” The brief argued that the issue arises infrequently, and that, while the Ninth Circuit had taken too broad a view of its power to stay a case in which competency is an issue, there was no conflict among lower courts on that issue. Moreover, the brief said, the case was not yet fully developed, because Gonzales had not yet had the competency hearing that had been ordered.

The Court, even so, granted review of both cases on March 19 — presumably to confront the separate federal laws in which the two Circuit Courts had ruled in finding a right to competence justifying a habeas stay.

The briefs on the merits case by Ohio and Arizona are devoted mainly to arguing against indefinite delays of habeas cases over the issue of competency, and that argument is keyed closely to the assertion that there is no right for a state inmate to remain competent in order for federal habeas to proceed, since a “next friend” can stand in for the inmate and since habeas review is strictly limited to a record that already had been made in state court so there is nothing that the inmate could add to the proceedings. The merits briefs by the two prisoners rely primarily upon the discretion that normally is accorded to lower courts to decide when a stay of their proceedings is appropriate. Those briefs attempt to directly rebut the argument that a habeas case can proceed without the participation of the individual most directly affected.

As at the petition stage, the states drew the support of sister states, this time 14 of them. They also are supported by a crime victimes organization in Arizona. Lining up in support of the two prisoners are civil rights groups, the American Bar Association, organizations specializing in psychiatric treatment, and a group of retired federal judges.

Analysis

While the core of the case are issues of statutory interpretation, the Court may find a need to probe deeply into the issue of mental competency and how that affects the federal habeas process. It seems unlikely that the Court could sort out the meaning of the two statutes at issue without having something to say about whether there is at least some form of a right to be competent enough to take a meaningful part in one’s own defense. Much of the argument in the case up to this point has been about the indefinite delay issue, but the Justices may find it hard to resolve that issue until after they have confronted the competency question.

The states would have the Court brush by the competency question by simply declaring that there is no right to remain competent throughout a habeas case, and then move on to whether it is an abuse of the proceedings — and of states’ rights — for a court to put a case on indefinite hold until competency is restored. Whatever the Court may decide here about the continuing meaning or validity of what it did in Rees v. Peyton more than four decades ago, the competency question is a perplexing one on which the lower courts clearly are in need of guidance.

The prisoners would have the Court resolve these cases on the simple premise of judicial discretion to stay proceedings, but the cases actually are a good deal more complex than that.

The case, though, would emerge as a major victory for the states and for prosecutors if the Court ultimately were to conclude that, in federal habeas, the competency of the prisoner involved is less important — and perhaps not important at all — since those proceedings are devoted to a review of a record already made and judges can evaluate that record with no role in the process for the prisoner. That would, in one fell swoop, eliminate any need for a federal judge or appeals court to even weigh the possibility of a delay.

This case, made simple

One of the most ancient and treasured rights is the right to challenge the government if it is holding an individual in captivity. The way to make such a challenge, and this has existed for centuries, is to court to court with a plea that continued confinement by the government be justified. That is the process involved when a person who is a prison inmate files what is called a habeas corpus writ. That Latin phrase translates into “you have the body,” meaning that the government is detaining an individual and must now explain why, or let him go.

Often in modern times, individuals convicted in state court have repeatedly filed such challenges in federal court, after their cases have been closed in state courts, in order to test the validity of the state trial, the verdict, the sentence, or the state court appeal. Congress in 1996 sought to cut down on those multiple challenges by tightening the restrictions on federal judges hearing challenges by state inmates. One of the issues the Supreme Court faces in the new cases from Ohio and Arizona is an argument by the states this goal of speeding up the process will be seriously compromised, if federal courts impose delays on the proceedings in order to evaluate a claim that the prisioner has become mentally incompetent and as a result may be unable to cooperate with or assist his lawyer in pursuing his case.

Some courts have now concluded that, if there is a claim of mental incompetency, that needs to be sorted out before a federal challenge by a state prisoner can go forward. If a review of competency shows clearly that the prisoner is now incompetent, some courts have begun to conclude that the entire proceeding must be delayed until the individual’s mental health improves. If that happens in a death penalty case, the sentence will not be carried out, even though it had been upheld in state court and even though its legality has not yet been settled in the federal courts. The states thus complain that their desire to have finality in significant criminal cases is frustrated.

The Supreme Court has now given itself the task of clarifying how federal courts are to handle the incompetency issue, when it is raised by a state prisoner or his lawyer.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.